The Law of unintended consequences

[PVC King]

Thirdly, the submitted report from Dublin-based Tom Duffy Architects is an exposition in student internet copy and paste at its best. It is disheartening to say the least to read one’s own internet material on O’Connell Street being churned back verbatim in an exercise promoting the grubby interests of non-compliant convenience stores. The report doesn’t even relate how the proposed seating will impact on the Victorian double-plot facade of the impressive former Royal Bank, instead listing the likes of interior elements and even the roof with the remarkable observation of ‘no impact’ – eventually arriving at the insightful conclusion that on-street seating does not impact on historic fabric, without so much as a description of the architectural character of the building nor the potential streetscape visual impact.

Any chance of putting a disclaimer at the end of each page stating that posted material can only be used with permission?

[GrahamH]

In this case it was open source material, so entirely legitimate, if not quite imaginative.

But I see your point, as it happens quite regularly with planning applications. Still - flattery and imitation and whatnot!

[onq]

Thirdly, the submitted report from Dublin-based Tom Duffy Architects is an exposition in student internet copy and paste at its best. It is disheartening to say the least to read one’s own internet material on O’Connell Street being churned back verbatim in an exercise promoting the grubby interests of non-compliant convenience stores. The report doesn’t even relate how the proposed seating will impact on the Victorian double-plot facade of the impressive former Royal Bank, instead listing the likes of interior elements and even the roof with the remarkable observation of ‘no impact’ – eventually arriving at the insightful conclusion that on-street seating does not impact on historic fabric, without so much as a description of the architectural character of the building nor the potential streetscape visual impact.

Any chance of putting a disclaimer at the end of each page stating that posted material can only be used with permission?

You seem to have jumped into this new thread from somewhere else PVC King.

Is it possible to post a reference so we can see the genesis of this?

ONQ.

[Paul Clerkin]

I'll add a section of text to the footer - suggesting contacting the author before use as common courtesy

[onq]

Any chance someone could just post the reference to the text please?

TIA

ONQ.

[Paul Clerkin]

just a throwaway comment in the o'connell street thread where graham has observed that his comments on Lynam's hotel have been reproduced in a report FOR alterations to the building

[onq]

Thansk Paul, appreciated.

A link to the original post where such was the source would be useful in any thread starter.



ONQ.

[Bob Dole]

I would have thought that the site owner retains copyright in all material posted.
If so Paul Clerkin could make an issue of this (if he wants to)...

[onq]

I would be surprised if that's so, but it *is* Paul's site.

My understanding is that copyright, as opposed to publishing rights, rests with the author.

ONQ.

[Bob Dole]

No - copyright like any other form of property right may be transferred. Generally this is the case with forums.
Employers have the copyright in stuff created by their employees.
Lawyers are generally surprised that architects try to retain copyright in their designs (when a lawyer writes an opinion or advice the copyright belows to the client).
Copyright may also be waived and bartered (see copyleft and creative commons for example).

[onq]

The incompetence of solicitors re transference of copyright is well known to me.

LOL!

One of them tried to convinnce me that copyright autmatically transferred to the agent acting for the purchaser of a site benefitting from permission I had obtained.

I stated that it didn't, that a limited right to use my designs for the purpose of the subject development on the subject site might be assumed to be transferred but in actual fact unless iconsented to this assuemd term I could prevent the building of the land.

The solicitor didn't believe me on the day and went off in a huff to gain rebuttal material.

Came back looking very crestfallen and admitted I knew my law at which point I reverted to my original position - I would transfer a limited license to use my design for this specific site and permission for the purposes of developing construction information and any revised planning permission they might requrie, but for no other site or development.

And that is the position in law as far as I understand it regarding copyrighted material.

Only sites such as hotmail, who used to require you to sign up and hand over copyright of your material or photos to them acquire any rights and I think you could argue the toss against this in court if they used it for profit as opposed to covering themselves.

FWIW

ONQ.

[Bob Dole]

Whoever controls the contract will generally draft it in their favour.
Thus the RIAI write the contract in their favour.
The neutral position (that the author or employer where applicable) is hardly ever used.
The standard terms for signing up to a forum require people to sign over copyright.
If this were not the case, it would be difficult for forums to work.

[onq]

Well BOb,

in relation to what this site requires, the FAQ is silent on handing over copyright.
As far a I can recall the original FAQ was silent on handing over copyright.

Here is what appears to be the current Act dealing with copyright AFAIK
http://www.irishstatutebook.ie/2000/en/ ... print.html

Finally I note that I also post extensively on askaboutmoney.com
Having conferred with the site owner I wrote the Self-BUildg FAQ.
This is an original work that draws on many resoruces.
AFAIK the copyright is solely vested in me as ONQ.

I'm not using these examples to beat you with a stick, Bob.
Merely to illustrate the position with regard to copyright.

This is as I understand it - happy to stand corrected.
But you have to show me some concrete proofs of your assertions.
Vague comments about sites requiring you to hand over copyright don't cut it

ONQ.

[onq]

Also a brief note on contract.

"Whoever controls the contract will generally draft it in their favour.
Thus the RIAI write the contract in their favour."

I have posted extensive comments on Archiseek about my opinion of the RIAI and the BCA 2007.
This is an Act, not a contract, and in my opinion it is drafted to favour the RIAI's members.

However the RIAI Contracts are building contracts between Employers and Contractors.
The Architect is not favoured by the Contract - he is not party to it - he administrates it.
The RIAI is not party to the contract - the copyright is vested in them as author of it.
That the RIAI tried to control who could use their contracts is just them being awkward.

In relation to contracts generally, by the nature of contract law they cannot be one sided.
Contracts must confer a benefit to both parties and the write cannot seek unfair advantage.
Contracts must be freely entered into and there can be no hidden terms or meanings therein.
Parties must be certain, of one mind and intend the same outcome - offer, acceptance, consideration.

The current GCCC contracts seek to transfer all teh risk to the contractor - this can be seen as one-sided.
But in contract law the consideration is what compensates for this risk-taking, risk being part of any enterprise.

ONQ.

[Bob Dole]

However the RIAI Contracts are building contracts between Employers and Contractors.
The Architect is not favoured by the Contract - he is not party to it - he administrates it.
The RIAI is not party to the contract - the copyright is vested in them as author of it.
That the RIAI tried to control who could use their contracts is just them being awkward.

The RIAI contracts for use between client and architect vests copyright in the architect.

In relation to contracts generally, by the nature of contract law they cannot be one sided.

Yes they can.

Contracts must confer a benefit to both parties and the write cannot seek unfair advantage.
Contracts must be freely entered into and there can be no hidden terms or meanings therein.
Parties must be certain, of one mind and intend the same outcome - offer, acceptance, consideration.

Thanks for the contract law 101, I have a number of degrees and diplomas in law, but it's always nice to get the basics- though you are incorrect that all contracts must confer a benefit - contracts under seal need not. I won't get into clarifying the other elements of what you've said though there are inaccuracies or ambiguities -at least- in most of it.

The current GCCC contracts seek to transfer all teh risk to the contractor - this can be seen as one-sided.

The GCCC contract for use between the employer and a designer is an example of a contract which vests copyright to the benefit of the drafter of the contract (i.e. it gives copyright to the employer).
Your quote above isn't entirely accurate.

Regarding Copyright, the 2000 Act remains the operative Act in Ireland. Reading the terms of registration for Archiseek, I have not come across any terms addressing copyright - so unless they are contained somewhere further into the process, you are correct in saying that copyright remains with the author.

[onq]

Bob,

I appreciate the confirmation, but I would also value your comments in relation to any issue I may have inadvertently misled people on.
I only have the one degree, and we only do two years of law in 4th and 5th year, so I'm hardly a subject matter expert.
However contract is all about basics when you're up in front of a judge, where I've offered evidence many times.

So please feel free to point out ther error of my ways in my previous post and don't make vague references.
I view competent, pointed criticism as a form of respect as opposed to an attempt to undermine.
How else do we best learn what we may need to know someday?

Carry on...

ONQ.

[Bob Dole]

In relation to contracts generally, by the nature of contract law they cannot be one sided.
Contracts must confer a benefit to both parties and the write cannot seek unfair advantage.

The writer of a contract may seek as much unfair advantage as they want to.
There are some doctrines which apply in certain circumstances (unconscionable bargain, undue influence, duress) - as well as ways of ensuring that these do not apply to a given circumstance (e.g. requiring the other party to seek legal advice).
There is also legislation governing "unfair terms" in consumer contracts (between a consumer and a business).
Other than that, go nuts with seeking unfair advantage..

Contracts must be freely entered into and there can be no hidden terms or meanings therein.

Arguably all implied terms are hidden terms of a contract. Definitely some implied terms will only reveal their existence in unusual circumstances which the parties had never considered - it will depend on the skill of counsel as to what these terms are...

Parties must be certain, of one mind and intend the same outcome - offer, acceptance, consideration.

Parties must be ad idem - though there is an objective test to determine this. One party may not believe that a contract exists; they may not wish a contract to form, yet the court can hold that a contract exists (see Carlyle v Carbolic Smoke ball as an example). It is an objective test.

[onq]

Bob,

Don't wait for me.

You can start pointing out the parts I got wrong any time you like...

ONQ.

[Bob Dole]

Assuming you read my post, I just did.

[onq]

Ah c'mon Bob.

You're just nit-picking now...

You forgot to read the FAQ here about copyright.

Now you're trying to subject me to the death of a thousand cuts on contract.

You're taking the position of what someone can try, while I'm taking the overview of how the contract should be construed.

ONQ.

[Bob Dole]

There is no nit-picking in law. It is not merely what one "may try", it is what is allowed. Also "*should* be construed": I am stating how contracts are construed.

Perhaps you should do some course in law - I heard the RIAI professional practice course covers them, you might want to try it.

[onq]

OTC Bob,

I pointed out your error in relation to the substantive issue of copyright .
Since then you appear to have consoled yourself by nitpicking me over minor matters centred on your "letter of the law" interpretation and how it conflicts with my "spirit of the law" interpretation.

For the record, I did two years of law in Bolton Street under Hugh O'Neill, covering general legal principles, including tort, negligence, nuisance and contract - the usual.

The Part III's broaden the law base to include Health and Safety, Employment Law, and a deeper understanding of contract as it applies to the RIAI contracts.

The Part III doesn't teach you have to read a site's Faq before making unfounded assertions about assumed transfer of copyright.

That's the kind of due diligence that comes with professionalism - its not bound to a law degree any more than a degree in architecture.

For all your courses you seem to have missed one of the first principles of law - read the document.

Here's another good rule for you - when you're in a hole, stop digging.

ONQ.